The Scary, New Freedom of Religion

Striking down the HHS Contraceptive Mandate on constitutional grounds should have been much more of a slam-dunk. Why did the Obama Administration think they could justify this in the first place?

The answer, as I'll describe below, is a movement to narrow the Free Exercise Clause of the First Amendment to respect only a freedom of worship. This way, our sacred Freedom of Religion would be gutted of its "freedom of conscience." This is how the constitution would need to be warped, as I'll argue below, to support any of the many varieties of the HHS Contraception Mandate.

First some HHS Contraception Mandate background ...

[skip ahead if you already know the background of the HHS Mandate]

What was this HHS Contraception Mandate that so successfully united the American Catholic Bishops against it? The HHS Contraception Mandate is a provision of ObamaCare which leaves some decision-making to the Health and Human Services (HHS) Secretary, whoever that may be. Right now, it's Kathleen Sibelius, the former governor of Kansas and a Catholic, allegedly. HHS decided that the best way to provide free contraceptives and abortifacients was to mandate that employers provide them.

The Steps: Testing Our Resolve

There were several steps HHS took along the way to "moderate" the Contraception Mandate. Each of these, I argue, was designed to find the chink in our armor and slowly peel away layers of supporters until the Obama Administration found a sweet spot of apathy. Each of the following levels are ordered from more to less radical:

Which Employers?

Are only churches exempted on religious freedom grounds?

e.g. your local parish church and its employees

Are only churches and church-sponsored organizations exempted on religious freedom grounds?

i.e. Employers forced to provide insurance policies which are forced to include contraceptives and/or abortifacients

The Obama Administration began their negotiations with America's conscience with the most radical option from each of the above: insurance for abortifacients and contraceptives, provided directly by employers with a narrow church exception. After stiff opposition, the Obama Administration has "moderated" the mandate to (almost) the least radical option from each of the above: insurance for contraceptives only, provided indirectly through employers' insurance providers, with exceptions for churches and church-affiliated organizations, like hospitals and universities.

Why the HHS Contraception Mandate(s) is Slam-Dunk Unconstitutional

There's a Supreme Court (SCOTUS) case called Employment Division v. Smith, 494 U.S. 872 (1990). Basically, it said that Oregon could discriminate against a Native American who, despite claiming religious freedom, smoked peyote as part of a religious ritual. You may be saying--"that's reasonable: doing drugs is a bad idea, even as part of a religious ceremony." Okay, but think about the next step. What if a law got rid of the religious exception for underage drinking? That would seriously interfere with the way Catholics do the Sacrament of First Communion.

Employment Division v. Smith got rid of "strict-scrutiny" (i.e. the Sherbert Test) for religious freedom violations. "Strict scrutiny" basically means that the government can discriminate against you, based on race, religion, etc., but it needs a REALLY, REALLY compelling reason. When SCOTUS took strict scrutiny away, the government could discriminate based on religion, so long as their reason for doing it wasn't unreasonable. Not good!

The U.S. Congress sniffed out where SCOTUS was going with this, and passed the Religious Freedom Restoration Act (RFRA, "Riff-Rah") in 1993. RFRA re-instituted strict-scrutiny for laws that discriminated based on religion or religious beliefs. YAY!!

The Supreme Court overruled RFRA in a subsequent case City of Boerne v. Flores, but ONLY with respect to state governments--NOT the federal government. This means that the HHS Mandate still has to contend with RFRA and strict scrutiny.

Strict Scrutiny of the HHS Contraception Mandate--Why no SLAM DUNK?

So, why does the HHS Contraception Mandate--any of them--necessarily fall under strict scrutiny? Let's tease this out a little bit.

Under strict scrutiny, the law that would discriminate against people based on religion has to (1) be based on a REALLY, REALLY good governmental purpose, and (2) the law has to be "narrowly tailored" to this purpose.

So the Obama Administration is arguing, first, that it's REALLY, REALLY important for every woman to have free access to contraceptives (and maybe also abortifacients). And, second, that forcing employers to provide contraceptives, in spite of their consciences, is the best way to do this. ARE YOU KIDDING ME???

First, not everybody agrees that contraceptives, much less abortifacients, are necessary for human existence (doesn't human existence require the continued existence of humans?) or are medically necessary or are a fundamental right--though too many argue just this.

Second, why is it necessary for employers to provide contraceptives? If Obama wants to supply every American woman with contraceptives, why force it on small businesses? He's already procured billions and billions of dollars for ObamaCare, the government, itself, could provide these contraceptives.

Third, why is it necessary for an employer to violate his own conscience to appease the President's conscience?

If the first two reasons weren't enough to kill the HHS Contraceptive Mandate, the last one surely was, as seen in the recent decisions by the D.C. Circuit Court of Appeals striking down the HHS Contraception Mandate in favor of Wheaton College and Belmont Abbey.

And BOOM goes the dynamite: You can read the DC Circuit Court's Order to Kathleen Sibelius, HHS, and the Obama Administration here.

But Why Did the Obama Administration EVER Think They Could Get Away With This??

First off, here's the Free Exercise Clause of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Both President Obama and Hillary Clinton have already begun publicly arguing for a narrower reading of the Free Exercise Clause of the First Amendment. This narrower reading of the Free Exercise Clause would respect, as I said above, only a Freedom to Worship. That is the "exercise" of religion is only worshiping God, not honoring His commandments or our consciences. This reading of the First Amendment would remove the "freedom of conscience" from the "freedom of religion." Or, as many have taken to calling it, the "freedom FROM religion." This is no conspiracy theory. Just read, for example, the very first line of President Obama's Presidential Proclamation on Religious Freedom Day, January 16, 2013:

Foremost among the rights Americans hold sacred is the freedom to worship as we choose.

The General Counsel for the Becket Fund, Kyle Duncan, asked how Obama could proclaim religious freedom while pursuing the HHS Contraception Mandate:

Perhaps this mismatch between words and deeds can be explained by the phrase "freedom of worship," which the President uses in the first sentence of his proclamation. Religious freedom certainly includes worship, but it extends beyond the four walls of a church. If it is not to be an empty promise, religious freedom must also include acting on one’s deepest religious beliefs.

Rick Santorum was even criticized for pointing out Obama's radical view of the freedom of religion during the last presidential campaign by the religious community. See this other Christianity Today article.

As I said above, Former Secretary of State Hillary Clinton has also been known to use the phrase "freedom to worship" to replace "freedom of religion." In a December 2009 speech at Georgetown University, she repeated "freedom of worship" three times, while never mentioning "freedom of religion." And again, while addressing senators in January 2010, she referred to "freedom of worship" four times and "freedom of religion" once when quoting an earlier Obama speech.

To conclude, this is no small matter. We're facing a complete restructuring of our freedom of religion. But what's happening in the courts is just the slow manifestation of seismic changes occurring throughout society. In the words of the Scottish moral philosopher Alasdair McIntyre, we are living in the "After Virtue" society. We are watching a public rejection of objective moral truth and reality, itself, which George Weigel recently described as the "New Gnosticism" ("Reality and Public Policy," 4/1/2013).

What's the answer? As always, the sacraments, prayer, fasting, and solid education. Thanks for reading!

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Hey, my name is Scott Smith. I'm a Catholic attorney, author, and theologian. I live in southern Louisiana with my beautiful wife and four wild-eyed children. We live between two rivers in our hometown of New Roads... Read more